Advice and Consent: What the Constitution Says

Editor's
Note: Between various presidential nominations now bottled up in
the U.S. Senate, and now the intense focus on a nomination to the
United States Supreme Court, there have been numerous musings about
presidential nominations, the advice and consent of the Senate, and
the appointment of judges of the Supreme Court and other officers
of the United States. This essay by constitutional scholar John
McGinnis of Northwestern University School of Law considers in
close detail what the Constitution actually says and means on this
matter. Looking closely at the text as well as the debate in
the Constitutional Convention, McGinnis establishes that "the
President has plenary power to nominate" and that the record
"repudiates any special constitutional prenomination role for the
Senate." At the same time, the essay also concludes that the Senate
"has complete and final discretion in whether to accept or approve
a nomination."

This essay is
part of The Heritage Guide to the Constitution
(forthcoming), a line-by-line analysis of the original meaning
of each clause of the United States Constitution, edited by David
Forte and Matthew Spalding.

Appointments Clause

The
President . . . shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law. . .

(Article II, Section 2, Clause 2)

This clause
contemplates three sequential acts for the appointment of principal
officers-the nomination of the President, the advice and consent of
the Senate, and the Appointment of the Official by the President.
This clause applies to principal officers in contradistinction to
inferior officers, whose appointment is addressed in the next
portion of the clause. Although the Senate must confirm principal
officers, including Ambassadors and Supreme Court Justices,
Congress may choose to require that any officers whose office "is
established by law" be confirmed by the Senate, whether they be
inferior or not.

The important
questions for principal officers and their confirmation are, first,
whether the President has plenary power of nomination or whether
the Constitution limits this power by requiring the President to
seek prenomination advice; second, whether the President must
nominate only those who meet qualifications set by Congress; and,
third, whether the Senate has plenary power to reject nominees or
whether that power is circumscribed by some standard.

Both the debates
among the Framers and subsequent practice confirm that the
President has plenary power to nominate. He is not obliged to take
advice from the Senate on the identity of those he will nominate,
nor does the Congress have authority to set qualifications for
principal officers. The Senate possesses the plenary authority to
reject or confirm the nominee, although its weaker structural
position means that it is likely to confirm most nominees, absent
compelling reasons to reject them.

The very grammar
of the clause is telling: the act of nomination is separated from
the act of appointment by a comma and a conjunction. Only the
latter act is qualified by the phrase "advice and consent."
Furthermore, it is not at all anomalous to use the word advice with
respect to the action of the Senate in confirming an appointment.
The Senate's consent is advisory because confirmation does not bind
the President to commission and empower the confirmed nominee.
Instead, after receiving the Senate's advice and consent, the
President may deliberate again before appointing the nominee.

The purpose of
dividing the act of nomination from that of appointment also
refutes the permissibility of any statutory restriction on the
individuals the President may nominate. The principal concern of
the Framers regarding the Appointments Clause, as in many of the
other separation of powers provisions of the Constitution, was to
ensure accountability while avoiding tyranny. Hence, following the
suggestion of Nathaniel Gorham of New Hampshire and the example of
the Massachusetts Constitution drafted by John Adams, the Framers
gave the power of nomination to the President so that the
initiative of choice would be a single individual's responsibility
but provided the check of advice and consent to forestall the
possibility of abuse of this power. Gouverneur Morris described the
advantages of this multistage process: "As the President was to
nominate, there would be responsibility, and as the Senate was to
concur, there would be security."

The
Federalist similarly understands the power of nomination to be
an exclusively presidential prerogative. In fact, Alexander
Hamilton answered critics who would have preferred the whole power
of appointment to be lodged in the President by asserting that the
assignment of the power of nomination to the President alone
assures sufficient accountability:

[I]t is easy
to show that every advantage to be expected from such an
arrangement would, in substance, be derived from the power of
nomination which is proposed to be conferred upon him; while
several disadvantages which might attend the absolute power of
appointment in the hands of that officer would be avoided. In the
act of nomination, his judgment alone would be exercised; and as it
would be his sole duty to point out the man who, with the
approbation of the Senate, should fill an office, his
responsibility would be as complete as if he were to make the final
appointment. The Federalist No. 76.

Chief Justice John
Marshall in Marbury v. Madison, Justice Joseph Story in his
Commentaries on the Constitution of the United States, and
the modern Supreme Court in Edmond v. United States (1997)
all confirm that understanding.

Congress
establishes offices, and the President, at least in regard to
principal officers, nominates office holders. Under the Necessary
and Proper Clause (Article I, Section 8, Clause 8), Congress has
often established qualifications for those who can serve in the
offices it has created, thereby limiting the range of those the
President can nominate. Andrew Jackson protested that such acts
were an unconstitutional infringement of his appointing power, but
Congress has continued the practice to this day. The Supreme Court
has held that Congress may not provide itself with the power to
make appointments, Buckley v. Valeo (1976), but it is
unclear how far Congress may go in setting qualifications for
principal officers without contravening the Framers' interest in
assuring the President's accountability for the initial choice.
President James Monroe declared that Congress had no right to
intrude upon the President's appointing power. In Myers v.
United States (1926), Chief Justice Taft declared that the
qualifications set by Congress may not "so limit selection and so
trench upon executive choice as to be in effect legislative
designation." In Public Citizen v. U.S. Dept. of Justice
(1989), Justice Anthony Kennedy, concurring, opined that the
President's appointing power was exclusive, and that only the
Incompatibility Clause (Article I, Section 6, Clause 2) limits the
range of his choice. The Court, however, has yet to make a
definitive statement on the issue.

Closely related to
the Framers' interest in assuring accountability was their interest
in avoiding an appointment that would be the result of secret
deals. In defending the clause's structure of presidential
nomination and public confirmation, Hamilton contrasted it with the
appointments process by a multimember council in his own state of
New York. Such a council acting in secret would be "a conclave in
which cabal and intrigue will have their full scope. . . . [T]he
desire of mutual gratification will beget a scandalous bartering of
votes and bargaining for places." Delegates to the Constitutional
Convention had expressed similar concerns. If the Senate had a
formal prenomination advisory role, the Senate leaders and the
President might well be tempted to make a deal that would serve
their parochial interests and then be insulated from all but pro
forma scrutiny. Other contemporaneous commentary on the
Appointments Clause repudiates any special constitutional
prenomination role for the Senate. James Iredell, a leading
proponent of ratification in North Carolina and subsequently a
Supreme Court Justice, observed at his state's ratifying
convention: "As to offices, the Senate has no other influence but a
restraint on improper appointments. The President proposes such a
man for such an office. The Senate has to consider upon it. If they
think him improper, the President must nominate another, whose
appointment ultimately again depends upon the Senate."

The practice of
the first President and Senate supported the construction of the
Appointments Clause that reserves the act of nomination exclusively
to the President. In requesting confirmation of his first nominee,
President Washington sent the Senate this message: "I nominate
William Short, Esquire, and request your advice on the propriety of
appointing him." The Senate then notified the President of Short's
confirmation, which showed that they too regarded "advice" as a
postnomination rather than a prenomination function: "Resolved,
that the President of the United States be informed, that the
Senate advise and consent to his appointment of William Short
Esquire. . . ." The Senate has continued to use this formulation to
the present day. Washington wrote in his diary that Thomas
Jefferson and John Jay agreed with him that the Senate's powers
"extend no farther than to an approbation or disapprobation of the
person nominated by the President, all the rest being Executive and
vested in the President by the Constitution." Washington's
construction of the Appointments Clause has been embraced by his
successors. Some Presidents have consulted with key Senators and a
few with the Senate leadership, but they have done so out of comity
or political prudence and never with the understanding that they
were constitutionally obliged to do so. A law setting
qualifications would not only invade the power of the President, it
would also undermine the authority of the Senate as the sole
authority to decide whether a principal officer should be
confirmed.

The other
principal controversy arising from the Appointments Clause has
concerned the authority of the Senate to reject nominees. The
Senate has independent authority in that it may constitutionally
refuse to confirm a nominee for any reason. While ideology and
jurisprudential "point of view" were not among the kinds of
concerns listed by the Framers as justifying the requirement of
advice and consent, nothing in the text of the clause appears to
limit the kind of considerations the Senate can take up. It is thus
reasonable to infer that the Framers located the process of advice
and consent in the Senate as a check to prevent the President from
appointing people who have unsound principles as well as blemished
characters. As the President has complete discretion in the use of
his veto power, the Senate has complete and final discretion in
whether to accept or approve a nomination.

Given that the
Senate was not to exercise choice itself, it appeared to Alexander
Hamilton that a nominee should be rejected only for "special and
strong reasons." The President's power of repeated nomination
provides a check on the Senate's ability to reject a nominee on
something less than an articulable weighty reason. In fact,
Hamilton argued that if the Senate fails to make that case and
rejects the nominee for a pretextual reason, the President would
generally be in a position to find a second candidate without these
putative defects who generally shares the President's point of
view. It is rare, however, for a President to renominate a person
to a position once the Senate has declined to accept the
nomination.

The President does
possess an advantage in the unitary nature of the executive office
as compared to the diffuse and variegated nature of the Senate-even
when it is controlled by the opposition party. The President is a
single individual, whereas the Senate is a body composed of many
individuals with a wide range of views, including members with
views like that of the President. When the President has a
substantial basis of party support in the Senate and thus a nucleus
of probable supporters, he has leverage for confirmation. Thus, the
image of a divided government as a government in any sense equally
divided when it comes to an analysis of the Appointments Clause and
the confirmation process is a fundamentally false image, as George
Mason recognized: "Notwithstanding the form of the proposition by
which the appointment seemed to be divided between the Executive
& Senate, the appointment was substantially vested in the
former alone." Moreover, the President's advantage in the process
is a considered feature of the Framers' design: they knew how to
create a process by which the power of the executive and the Senate
would be rendered more equal. Unlike the approval of treaties, it
does not take a supermajority to approve a presidential
nominee.

Because the
President has the initiative of choice in the appointments to the
executive branch and the judiciary, the views of his prospective
appointees are more likely to become a presidential campaign issue
than in senatorial campaigns. Since he possesses the greatest
discretion, the political process fastens upon him the greatest
accountability. However, when a substantial number of Senators
assert that there are strong and compelling political reasons to
reject a nominee (as opposed to rejecting one because of a flawed
character), the Constitution's structure ensures a confirmation
battle. As such, the Constitution contains mechanisms designed to
contain conflict within the republican process in order to protect
against the degeneration of the Republic's original ideals and thus
ensure the Republic's stability. The Appointments Clause is a prime
example of such a mechanism. It structures the confirmation process
so that when two of the Republic's national governing branches are
in fundamental disagreement, there will be a struggle to persuade
the people of the correctness of their respective positions. In the
case of a struggle over constitutional interpretation as in a
Supreme Court nomination, the public will be forced to consider the
first principles of the Republic-in this case, the role of the
judiciary and the proper method of interpreting its governing
document. Citizens will thus vicariously enjoy some measure of the
experience of the Framing of the Constitution, thus contributing to
the Republic's self-regeneration.

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